HKSAR v. LAM WING SHING

DCCC 581/2024

[2025] HKDC 434

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 581 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant was facing three charges: Charge 1, causing death by dangerous driving; Charge 2, using a vehicle with fitting other than in good and serviceable condition; and Charge 3, careless driving, which is an alternative charge to Charge 1. The defendant pleaded not guilty to Charge 1, but guilty to Charge 2 and Charge 3. The prosecution agreed not to proceed with Charge 1, which is left on court file, not to be proceeded with without the leave of the court.

2.  The case involves a fatal traffic accident. At about 7:30 am on 12 October 2023, a light goods vehicle (the “Vehicle”)  driven by the defendant hit Mr Tong, then aged 79 (the “Deceased”)  at the cross junction of Ma Tong Road and Tai Tong Road, Yuen Long, New Territories. The junction was a light-controlled cross junction.

3.  At the material time, the weather was fine. Road surface was dry and in good repair. The traffic volume was moderate. The applicable speed limit was 50 kilometres per hour.

4.  A CCTV footage of a nearby building showed that the Vehicle was travelling along the northbound of Tai Tong Road, occupying both the first lane and the second lane before it reached the junction. When the Vehicle was turning right into Ma Tong Road under a green light signal, a bicycle hidden by the Deceased came out from the southbound of Tai Tong Road at a normal speed.

5.  The front of the Vehicle hit the bicycle and the Deceased at the junction. The Deceased then fell on a pedestrian crossing. However, as can be seen in the CCTV footage, the impact should have taken place a little farther from the pedestrian crossing as the Deceased was only pushed forward after the collision.

6.  When the defendant was arrested, and also in a video interview, he stated that at the material time he was making a right turn under a green light signal. Before the accident, he only saw a black shadow appeared at the front of the Vehicle. When he braked, the front offside of the Vehicle had already hit the black shadow.

7.  Dr Ng Ka-ho, a forensic scientist, later examined the CCTV footage. He also attended the scene and conducted a traffic accident reconstruction. Dr Ng opined that from 3.5 seconds to 0.5 second before the impact, the driver’s view of the Deceased could have been unobstructed through the front windscreen of the Vehicle if the driver had an upright sitting posture or was shifting his head to the nearside. On the other hand, if the driver shifted his head to the offside, his view of the Deceased could have been obstructed or partially obstructed by the front structural column of the Vehicle from 3.5 seconds to 1.5 seconds before the impact, and from 1 second to 0.5 second before the impact respectively.

8.  Dr Ng also calculated the average speed of the Vehicle during the 3.5 seconds period before the impact, the speed ranged from 24 (plus or minus 2)  kilometres per hour to 35 (plus or minus 4)  kilometres per hour. He also noticed that there was a slight deceleration when the Vehicle started to turn right at the junction. Dr Ng gave his opinion that if the driver of the Vehicle was able to perceive the danger of hitting the Deceased near or earlier than 1.5 seconds before the impact and applied hard brake with a reaction time of 0.9 second, the accident might be averted.

9.  A motor vehicle examiner examined the Vehicle and found a mechanical defect. It was about the retraction of the driver’s seatbelt, which was caused by clipping at the end of the seatbelt. 

10.  The defendant admitted in court, inter alia, that he drove carelessly by failing to keep a proper look out of the road and occupying two lanes when entering the junction.

11.  Mr Leung, with him, Ms Chan, appeared in mitigation for the defendant. At the outset of his mitigation, Mr Leung conveyed the defendant’s deep sorrow to the Deceased’s family. Counsel told the court that the defendant is aged 67. He is married with two children. He resides with his wife and is employed as a warehouse manager with a monthly income of about $16,000.

12.  The defendant has 46 years of driving experience, having obtained his driver’s license in 1979. He has no traffic conviction record save and except a fixed penalty fine in 2018. Although the defendant has previous minor conviction records, they were long ago with the most recent conviction record being 34 years ago in 1990 for loitering and gambling.

13.  Mr Leung submitted that there are no sentencing guidelines to an offence of careless driving. The maximum penalty is a fine at level 2, (i.e. $5,000), and to imprisonment for 6 months. The court has a discretionary power to order disqualification for such period as the court thinks fit. It was submitted that the primary consideration in driving offences is the culpability of the manner of driving, while the consequences of the driving are relevant considerations for sentencing purposes.

14.  Counsel referred to two court of appeal cases, HKSAR v Leung Chiu Yu[1] and a more recent one, HKSAR v Yu Jie[2]. In Leung Chiu Yu’s case, the Court of Appeal held that even if the offender’s careless driving had resulted in the death of another person, when the degree of carelessness was assessed to be at a low rung of the ladder of culpability, it would be appropriate to impose a fine coupled with an order for disqualification from driving. It was submitted that, the defendant’s culpability in this case is on the low end and he cannot be said to have been solely culpable for the accident as the defendant was entering the junction under green light signal.

15.  It was submitted that the defendant’s explanation to the police that he could not see the Deceased and the bicycle is consistent with the opinions of Dr Ng, the government forensic scientist. Since the defendant was making a right turn into the junction, his head naturally and reasonably shifted towards the offside, (i.e. the right side), to pay attention to the pedestrians on the pedestrian island along Ma Tong Road. His view of the Deceased could have been obstructed or partially obstructed, and unable to perceive any danger of collision. So his carelessness was a momentary lapse of attention. 

16.  It was suggested that the Deceased entered the junction in defiance of traffic signal. While not putting blame on the Deceased, defence counsel submitted that the defendant cannot be said to have been solely culpable for the accident.

17.  Acknowledging that the consequences of the offence is serious, Mr Leung urged the court to accept that the defendant’s culpability was at a low rung of the ladder of culpability. He asked the court to sentence the defendant by way of a fine or alternatively, the court can obtain reports to assess the defendant’s suitability for a community service order.

18.  He also referred the court to 11 District Court sentencing cases involving careless driving offences in fatal accidents. In all these cases, sentences of fines, community service orders and suspended sentences have been imposed. 

19.  I had originally adjourned the case to 21 February 2025 for sentence without calling for a CSO report. But during the adjournment, I decided to call for this report and adjourned the case to today for the preparation of the report. The report is now available before the court. 

20.  The probation officer, having interviewed the defendant, observed that the defendant was sincere and cooperative in the interview. He said the defendant looked sad and stressful, confessing that he could not see the victim during the accident. He felt guilty for the death of the victim.

21.  The defendant is described in the report as a man who has “kept peace” in the past years, being caring and responsible to his wife and children. In view of his remorseful attitude, the probation officer suggested to give the defendant a chance to reform in the community by way of a CSO. A CSO for a low to medium range of service is recommended.

22.  The defendant is convicted of careless driving on his own plea, which is accepted by the prosecution, quite properly in my view, in all the circumstances of the case. Sadly, the traffic accident took the life of the 79-years-old deceased.

23.  While the primary consideration in careless driving cases is the culpability of a defendant’s manner of driving, the consequences of the loss of a precious life must be seriously taken into account in considering a proper sentence. I have carefully considered the circumstances of the defendant’s impugned driving. Save that he straddled two lanes before he turned right, which is irrelevant to the accident, he did not disobey any traffic regulations. In particular, when the defendant was turning right into the road junction, it was under green light signal. He was travelling at a speed of about 24 to 35 kilometres per hour, which is quite slow and well below the prescribed speed limit. He duly gave signal to turn right when he approached the junction. He also slightly decelerated when he started to turn right at the junction, presumably to check that the traffic condition was safe for him to turn into the junction.

24.  According to the forensic scientist, Dr Ng, if the defendant shifted his head to the right side, his view of the Deceased could have been obstructed or partially obstructed by the front column of the Vehicle. I accept what the defendant explained to the police upon investigation. He did not see the Deceased until his vehicle collided with the bicycle.

25.  I also accept the submission of Mr Leung that the defendant would have naturally and reasonably shifted his head to his right to pay attention to the pedestrians on the pedestrian island so the defendant was unable to notice the Deceased coming out from the opposite side of Tai Tong Road. On this basis, the carelessness of the defendant is that, he neglected to look to his left. If indeed he did, he failed to notice the Deceased.

26.  The carelessness must be viewed with an understanding of the defendant’s belief that he could safely proceed under a green light. I accept the submission of Mr Leung that the carelessness was a momentary lapse of attention. By the same token, I accept that the defendant is not solely culpable for the accident. According to the road traffic light report submitted by the defence, the traffic signal controller at the relevant road junction was in normal operation at the material time. As a reasonable inference, one should assume that the Deceased was coming out from his road in defiance of a red light signal against him. In this connection, the defendant was not solely at fault. In all the circumstances of the case, the nature of the defendant’s impugned driving should not be considered as the worst of its kind.

27.  While not with unblemished character, the defendant only has very minor conviction records back in 1980 and 1990, i.e. more than 34 years ago. I should treat him as a person of good character for the purpose of sentencing. He has about 46 years of driving experience. He has no traffic conviction record except a fixed penalty ticket in 2018. His traffic record should be regarded as a good one.

28.  I agree with the probation officer and accept that the defendant is truly remorseful. I accept the mitigation that the defendant has been extremely tormented by the accident with self-blame. He will continue to be disturbed by the accident. 

29.  Having considered the circumstances of the accident, the personal circumstances of the defendant and his good driving record in the past, I finally come to a conclusion that this is not a case that should call for a sentence of imprisonment.

30.  The defendant is suitable for CSO and the probation officer recommends it. I consider that a CSO coupled with a disqualification order would be an appropriate sentence for the defendant’s careless driving.

31.  The defendant is therefore placed on CSO for 220 hours on the careless driving charge (Charge 1). I also disqualify him from driving any class of vehicle for 6 months. On Charge 2, I sentence the defendant by way of a fine of $2,000, that will be deducted from his bail money.